Karnataka High Court
Sri L. Shivalingaiah S/O Lingaiah vs Panchajanya Vidya Peetha Welfare Trust ... on 4 June, 2007
Equivalent citations: 2007(5)KARLJ625, AIR 2007 (NOC) 1908 (KAR.) = 2007 (4) AIR KAR R 504, 2007 (4) AIR KAR R 504, 2007 A I H C 2618, (2007) 5 KANT LJ 625, (2007) 4 ICC 292
Author: V. Jagannathan
Bench: V. Jagannathan
JUDGMENT V. Jagannathan, J.
Page 1160
1. The appellant herein, was removed from the Trusteeship of the 1st respondent-Panchajanya Vidya Peetha Welfare Trust (Registered.,) Page 1161 (hereinafter referred to as "Trust" for short) on the allegation of certain anti trust activities, as mentioned in the articles of charges dated 31.05.2006. The said order of removal was the subject matter of the original suit filed by the appellant herein in O.S.800/2007, wherein, amongst other things, the appellant prayed for a declaration that the order of his removal from the 1st respondent Trust is, illegal, invalid and without jurisdiction and for consequential relief of permanent injunction, restraining the defendants-respondents herein from interfering with the functioning/discharging of his duties as trustee of the 'Trust' and for other reliefs.
2. An application was also filed under Order-39, Rules-1 & 2 of Civil Procedure Code (IA-I) in the said suit, seeking the relief of temporary injunction against the respondents. The learned trial Judge, after hearing the parties dismissed the said I.A-I giving raise to this appeal.
3. I have heard the learned Counsel for the parties and perused the material on record.
4. Sri Abhinav. R, learned Advocate for Kumar & Kumar Associates appearing on behalf of the appellant submitted that the order of removal order is questioned before the trial Court on several grounds in the suit filed by the appellant and one such ground is pertains to not following the mandatory provisions of Section-92 of Civil Procedure Code and the second and more important ground is that the enquiry conducted by the enquiry officer was not in accordance with the principles of natural justice and that the appellant had filed his preliminary objections with regard to the jurisdiction of to the Enquiry Officer to conduct the enquiry proceedings, and despite filing of such objections, the Enquiry Officer proceeded to go on with the enquiry and the appellant was removed from trusteeship without considering his preliminary objections and that the appellant was not served with the copy of the enquiry report; and the order of removal of the appellant preceded the issuance of enquiry report to the appellant, which is clear from the proceedings of the Trust dated 06.01.2007 itself. It was also submitted that no procedure whatsoever is contemplated in the Trust deed for removal of a trustee; and even the amended trust deed that was brought into effect by the Trust does not indicate in any clear terms the procedure to be followed by the Enquiry Officer and as such, the said provision in the trust deed is rather vague and incoherent and therefore, in the absence of such provision, it was the duty of the 1st respondent-Trust to sought necessary permission from the jurisdictional Court, as required Under Section 92 of Civil Procedure Code before removal of the appellant from the trusteeship.
5. In support of the above contentions, the learned Counsel for the appellant placed reliance on the following decisions:
i) (1993) 4 Supreme Court Cases-727 (Managing Director, ECIL, Hyderabad and Ors. v. B. Karunakar and Ors.) Page 1162
ii) AIR 1961 Supreme Court-1570 (V 48 C.300) (Bishan Das and Ors. v. State of Punjab and Ors.)
iii) Un-reported Judgment of this Court passed in RFA. 2160/2006 dated 30.10.2006 (Vidya Pragathi Educational Trust and Ors. v. G. Kullayi Reddy)
iv) Un-reported Judgment of the Court passed in MFA. 2159/2001 dated 26.06.2001 (M. Janaki Prasad and Ors. v. V.S. Kuber) Support was also drawn from the observation found in Mulla on the Code of Civil Procedure volume-I, page 539 to contend that, to resort provision of under Section-92 of C.P.C., by two trustees of a temple against a co-trustee for his removal, the Court has the power to investigate charges of misconduct made by the defendant against the plaintiffs and even to remove them.
The sum and substances of the contentions urged by the appellant's counsel is that recourse to Section-92 ought to have been taken by the respondent-trustees in view of there being no clear guidelines or procedure contained in the Trust deed for removal of the trustee. In the alternative, the very enquiry that is conducted is vitiated because of non observation of the principles of natural justice and in not following the principles laid down by the Apex Court in Karunakar's case referred above. Further, the trial Court has not applied its mind to the facts and circumstances of the case in proper perspective, while rejecting I.A-I for temporary injunction.
6. Per contra, Sri. Jaya Kumar S. Patil, learned Senior Advocate appearing for Respondents-7 to 9 contended that Section-92 of Civil Procedure Code has no application whatsoever to the facts of the case on hand because, the said section contemplates a suit which is of a representative nature and the appellant cannot pursue his individual or a private interest and seek recourse to the provisions of Section-92 of Civil Procedure Code.
He further submitted that a bare reading of Section-92 would itself drive home the point that such a suit can proceeded only on the allegation that there was a breach of such trust or that the direction of the Court is necessary for the administration of the trust is called for. A suit whose primary object or purpose is to remedy the infringement of an individual right or to vindicate a private right does not fall under Section-92 of Civil Procedure Code. As far as the specific guidelines or procedure for conducting an enquiry for removal of the trustee is concerned, learned senior counsel referred to the amendment which was brought into force on 07.04.2006 to contend that a plain reading of said amendment would go to indicate that an enquiry that is contemplated is to be conducted by a retired District Judge appointed by a resolution approved by a 2/3 majority of the Trustees and therefore, the appellant cannot now contend that there are no proper guidelines or procedure contemplated while conducting an enquiry. All that is required the Enquiry Officer to follow is the fair procedure and he will have to afford an opportunity to the delinquent and the said requirements have been fulfilled in the instant case, as can be seen from the enquiry Page 1163 officer's report therefore, the contention of the appellant that the trust deed does not contained any guide lines whatsoever for removal of a trustee after holding enquiry cannot be accepted. It was also submitted that the impugned order passed by the trial Court does not suffers from any infirmities to call for interference from this Court. The contentions that are taken by the appellant, concerning with the validity of the enquiry can be gone in detail while dealing with the matter on merits by the trial Court and therefore, no interference is warranted at this stage, against the impugned order.
7. On the other hand, Sri. Madhusudan R. Nayak, learned Advocate appearing for the contesting respondents-1 & 2, while reiterating the submissions made by Sri. Jaya Kumar S. Patil, learned Senior Counsel also drew my attention to the observations of the Apex Court made in the case of Swami Parmatmanand Saraswati and Anr. v. Ramji Tripathi and Anr. to contend that Section-92 of Civil Procedure Code has no application to the case on hand. It was also submitted that the Enquiry Officer did consider the Preliminary objections raised by the appellant herein and therefore, no defect can be found either in the enquiry procedure or in the removal of the appellant from the Trusteeship. He further submits that as there is no prima facie case made out by the appellant for grant of temporary injunction and as there is no balance of convenience in his favour, the trial Court has rightly rejected the I.A for temporary injunction.
8. In the light of the contentions put forwarded by the learned Counsel for the parties, the points that arise for consideration of this Court are:
i) Whether the provisions of Section-92 of Civil Procedure Code are applicable to the facts of the present case or not?
ii) Whether the appellant has made out a case for interference with the impugned order passed by the trial Court?
9. It has to be borne in mind that this appeal is preferred against an interim order passed during the pendency of the suit and against the order passed on I.A-I refusing to grant an order of temporary injunction in favour of the appellant.
10. It is a well settled proposition of law that grant of an injunction is a matter of judicial discretion and the party seeking such relief will have to establish (a) a prima facie case (b) balance of convenience in his favour and (c) he would suffer an irreparable injury, if his prayer for temporary injunction is disallowed. This is a sine qua non. Even if a case is made out to bring the case within the ambit of a "triable case", the relief of injunction has to be granted. Therefore, we will have to see as to whether the appellant has made out a "Triable Case".
Page 1164
11. As far as the question relating to application of Section-92 of Civil Procedure Code is concerned, a suit that is contemplated by this Section is a representative suit and for the application of said section, the following conditions must be satisfied:
1) The suit must relate to a public charitable or religious trust;
2) There must be an allegation of breach of trust or the direction of the Court must be required for administration of the trust, and
3) The reliefs claimed must be those mentioned in the Section.
It is also settled law that the suit that is contemplated Under Section 92 of Civil Procedure Code is a representative suit which is to toe prosecuted by individuals not for their own interest but as the representative of the general public, in order to secure a proper administration of a public Trust. In the decision referred to by the learned Senior Counsel as well as the learned Counsel Sri. Madhusudan R. Nayak reported in AIR 1974 Supreme Court-2141, it has been observed by the Apex Court as under:
A suit under Section-92 is a suit of a special nature which presupposes the existence of a pubic trust of a religious or charitable character. Such a suit can proceed only on the allegation that there was a breach of such trust or that the direction of the Court is necessary for the administration of the trust and the plaintiff must pray for one or more of the reliefs that are mentioned in the section. It is, therefore, clear that if the allegation of breach of trust is not substantiated or that the Plaintiff had not made out a case for any direction by the Court for proper administration of the trust, the very foundation of a suit under the section would fail; and, even if all the other ingredients of a suit under Section-92 are made out, if it is clear that the Plaintiffs are not suing to vindicate the right of the public but are seeking a declaration of their individual or personal rights or the individual or personal rights of any other person or persons in whom they are interested, then the suit would be outside the scope of Section-92. A suit whose primary object or purpose is to remedy the infringement of an individual right or to vindicate a private right does not fall under the section. It is not every suit claiming the reliefs specified in the Section that can be brought under the section but only the suits which, besides claiming any of the reliefs, are brought by individuals as representatives of the public for vindication of public rights, and in deciding whether a suit falls within Section-92 the Court must go beyond the reliefs and have regard to the capacity in which the plaintiffs are suing and to the purpose for which the suit was brought. This is the reasons why trustees of public trust of a religious nature are precluded from suing under the section to vindicate their individual or personal rights. It is quite immaterial whether the trustees pray for declaration of their personal rights or deny the personal rights of one or more defendants. When the right to the office of a trustee is a asserted or denied and relief asked for on that basis, the suit falls outside Section-92.
Page 1165
12. In the light of the above position in law, we will have to examine the case on hand and on a perusal of the material available on record at this stage, the same does not indicate as to the precise manner in which an enquiry has to be conduced for removal of a trustee. All that the amended provisions of the trust provides is as under:
Any action of any Trustee including the office bearers namely, the Chairman, Managing Trustee or Treasurer if it amounts to acting contrary to the objects of the Trust, or against the interest of the Trust, or an act of un-becoming of a Trustee shall be enquired into by a retired District Judge appointed by a resolution approved by a 2/3 majority of the Trustees. The report of such Enquiry Offices shall be placed before the Board of Trustees in a special meeting convened for the purpose within a fortnight of receipt of the report. Thereupon, the Board of Trustees by 2/3rd majority shall take such action against the Trustee including his removal from the trust.
13. Except the above provision, absolutely there are no guidelines provided in the trust deed, as to how an enquiry has to toe conducted and what is the procedure contemplated for removal of a Trustee. Therefore, I do find enough force in the submission made by the learned Counsel for the appellant that in the absence of any specific guidelines or procedure being provided for removal of a trustee from the trusteeship of the 1st respondent-Trust, recourse to Section-92 of Civil Procedure Code becomes mandatory.
14. As far as the manner in which the enquiry is conducted, is concerned, it has been pointed out by the appellant's counsel that though the appellant gave representation questioning the jurisdiction of the Enquiry Officer to go ahead with the enquiry and to pass a preliminary order with regard to the jurisdiction, no such order was passed on the preliminary objections filed by the appellant. Secondly, and more importantly, the appellant did take a contention in the suit, filed by him, as could be seen from the plaint averments at paragraph-14 that he was not served with the enquiry report, which amounts to denial of principles of natural justice to the appellant. A perusal of the proceedings dated: 06.01.2007 also would demonstrate that decision was taken by the Trust to remove the appellant from the Trusteeship and after the said decision being arrived at, they have decided to send a copy of the resolution accompanied by a copy of the findings of the enquiry Committee to the appellant. Therefore, there is a considerable force in the submission made by the appellant's counsel that the enquiry report was sent to him long after his removal from the Trusteeship and that said action on the part of the 1st respondent-trust vitiates the entire enquiry conducted by the Enquiry Officers, as contended by the counsel for the appellant. The decision referred to in this connection i.e., Managing Director, ECIL Hyderabad and Ors. v. B. Karunakar and Ors. lays down the law as under:
It is the negation of the tenets of justice and a denial of fair opportunity to the employee to consider the findings recorded by a third party like the enquiry officer without giving the employee an opportunity to reply to it.
Page 1166 However, when the enquiry officer goes further and records his findings, which may or may not be based on the evidence on record or are contrary to the same or in ignorance of it, such findings are an additional material unknown to the employee but are taken into consideration by the disciplinary authority while arriving at its conclusions.
Both the dictates of the reasonable opportunity as well as time principles of natural justice, therefore, require that before the disciplinary authority comes to its own conclusions, the delinquent employee should have an opportunity to reply to the enquiry officer's findings. The disciplinary authority is then required to consider the evidence, the report of the enquiry officer and the representation of the employee against it.
A denial of the enquiry officer's report before the disciplinary authority takes its decision on the charges, is a denial of reasonable opportunity of natural Justice.
15. Having regard to the above dictum laid down by the Apex Court and in the instant case, as the proceedings dated 06.01.2007 do give an indication that the decision to remove the appellant having been taken before issuing/serving the copy of the enquiry report to the appellant herein, I am of the view that the appellant has made out a case which can be bracketed within the expression of "triable case" and consequently, the learned trial Judge was in error in making the observations that the appellant did not venture to mention in his plaint that he was not given a copy of the enquiry report. As the appellant has made out a case to be gone into in detail and as the question raised by the appellant at the stage indicate the existence of a prima facie case in his favour, the refusal on the part of the trial Court to grant an order of temporary injunction as prayed for, cannot be sustained in law and the findings recorded by the learned trial Judge are contrary to law and therefore, not free from unreasonableness or arbitrariness. For the foregoing reasons, I pass the following order:
ORDER
1. The appeal is allowed. The impugned order dated 17.02.2007 passed by the learned XXIV Additional City Civil Judge in O.S. No. 800/2007 is set aside and temporary injunction sought for is granted, on the following terms:
(a) The appellant shall be allowed to participate in all the 1st respondent-Trust meetings and the decision to be taken by the Trustees shall be on the basis of the majority of the Trustees.
(b) The appellant-plaintiff shall not cause any embarrassment to the Trust and shall not do anything unbecoming of a trustee of the 1st respondent Trust.
(c) It is made clear that if the appellant is aggrieved by any decision taken by the majority of the trustees, he can express his dissent in writing.
Page 1167
2. As the suit is pending for adjudication, it is further made clear that any observations made herein above, shall not in any way, influence the outcome of the case on merits, later on by the trial Court.
3. The trial Court shall dispose of the suit itself upon merits in accordance with law, within a period of six months from the date of receipt of a copy of this order.